Waite & Waite-Hollins
[2007] FamCA 477
•24 May 2007
FAMILY COURT OF AUSTRALIA
| WAITE & WAITE-HOLLINS & ANOR | [2007] FamCA 477 |
| FAMILY LAW - APPEAL OF REFUSAL OF APPLICATION TO STAY RETURN OF CHILDREN TO SWITZERLAND PENDING APPEAL AGAINST SUBSTANTIVE JUDGMENT - Urgent hearing - Children scheduled to return to Switzerland on day of appeal hearing – Circumstances of instability for children pending return to Switzerland - For the preceding 18 month period the children had been in the care of the Department of Community Development, the Mother remaining in Switzerland and the Father having predominantly supervised contact with the children – Finding by the trial Judge that in the event that the Appeal was successful, children likely to have contact with the Mother in Switzerland in any event – Permitting their immediate departure would allow contact - Given their preparation for departure, likely trauma to the children of any restriction on immediate return – Finding of trial Judge as to the likelihood of one child exhibiting serious psychological problems in the event that her wish to reside with the Mother did not eventuate FAMILY LAW - APPEAL OF REFUSAL OF APPLICATION TO STAY RETURN OF CHILDREN TO SWITZERLAND PENDING APPEAL AGAINST SUBSTANTIVE JUDGMENT – GROUNDS OF APPEAL - Alleged that trial Judge’s decision was contrary to law and particularly EJK v TSL (No.2) (2006) 35 Fam LR 590 - Father alleged that having regard to history of proceedings, the trial Judge erred in finding that Mother would voluntarily return the children to Australia in the event of a successful appeal FAMILY LAW - APPEAL OF REFUSAL OF APPLICATION TO STAY RETURN OF CHILDREN TO SWITZERLAND PENDING APPEAL AGAINST SUBSTANTIVE JUDGMENT - APPLICABLE PRINCIPLES - Full Court distinguished EJK v TSL (No.2) (2006) 35 Fam LR 590 - Trial Judge satisfied that there were safeguards in Switzerland to ensure the Mother’s compliance with court order – Correct test applied by the trial Judge in her determination of the Father’s stay application - Held by the Full Court that having regard to the unusual circumstances of this case, the welfare of the children dictated their expeditious return to Switzerland – Appeal Dismissed |
| Re Evelyn(No. 2) (1998) FLC 92-817 EJK v TSL (No.2) [2006] FamCA 806; (2006) 35 Fam LR 590 Sanders (1976) 26 FLR 474 |
| APPELLANT FATHER | MR WAITE |
| 1ST RESPONDENT MOTHER | MS WAITE-HOLLINS |
| 2ND RESPONDENT | DEPARTMENT FOR COMMUNITY DEVELOPMENT |
| INDEPENDENT CHILDREN’S LAWYER: | Ms S Crisp |
| FILE NUMBER: | PT | 3406 | of | 2000 |
| APPEAL NUMBER: | WA | 09 | of | 2006 |
| DATE DELIVERED: | 24 May 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | BRYANT CJ, KAY & THACKRAY JJ |
| HEARING DATE: | 4 September 2006 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 18 August 2006 |
| LOWER COURT MNC: | [2006] FCWA 84 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Dickey QC with Ms Brownlie |
| SOLICITORS FOR THE APPELLANT: | Paterson & Dowding |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Redman |
| SOLICITOR FOR THE 1ST RESPONDENT: | Gibson & Gibson |
| COUNSEL FOR THE INTERVENOR: | Mr Watters |
| SOLICITOR FOR THE INTERVENOR: | Department for Community Development |
| INDEPENDENT CHILDREN'S LAWYER: | Ms S Crisp Kott Gunning |
Orders
That the notice of appeal filed 4 September 2006 be dismissed.
That the costs of 4 September 2006 be costs in the appeal filed 28 July 2006.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Waite & Waite-Hollins
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: WA 09 of 2006
File Number: PT 3406 of 2000
| MR WAITE |
Appellant Father
And
| MS WAITE-HOLLINS |
Respondent Mother
And
| DEPARTMENT FOR COMMUNITY DEVELOPMENT |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 4 September we dismissed an appeal against orders made by Penny J on 18 August 2006 refusing to stay orders her Honour made on 30 June 2006 that permitted two children, N born in August 1996 and K born in May 1998, to reside with their mother in Switzerland. These are our Reasons.
The parties had separated in Perth in April 2000. The mother attempted to leave Australia with the children in May 2000 but was intercepted attempting to board a flight to Singapore en route to Switzerland.
In July 2000 orders were made by consent that the father have supervised contact with the children pending an investigation into allegations of sexual abuse. A trial took place in March 2001 in Perth in which each party sought residence orders. After the evidence was heard the matter was adjourned to provide for written submissions. On the day the final written submissions were filed in June 2001 the mother took the children from Australia in breach of court orders, using false passports, and thereafter resided in Switzerland with the children.
An application was then made to the Swiss authorities for the return of the children to Australia pursuant to the provisions of the Hague Convention on International Child Abduction. An order was made by the Swiss authorities that the children return to Australia but the mother moved her residence and went into hiding in Switzerland. She was located in November 2003.
In January 2004 the children were removed from the mother’s care and placed into foster care in Switzerland. On 17 January 2005, after the mother’s appeals in Switzerland were exhausted, the children were returned to Perth. In Western Australia they were placed into the care of the state welfare authorities and allowed only restricted contact with their father.
The mother did not accompany the children back to Australia, nor did she return to Australia for a further trial of the competing residence applications that was conducted over several days in February 2006. She gave evidence by video link in those proceedings. Judgment was delivered by Penny J on 30 June 2006 by which time the children had spent 12 months in care in Switzerland and 18 months in foster care in Australia.
Given the strongly held views of the children, and the likely detrimental effects on the children’s psychological health if they were not permitted to live with their mother to whom they were closely bonded, Penny J concluded that the appropriate orders were that the children be returned to Switzerland.
The father appealed against the orders. He also sought to stay the effect of the orders, so that the children would remain in Australia pending the determination of the appeal. Penny J heard the stay application and refused it. The father subsequently appealed her Honour’s refusal by Notice filed on 4 September 2006. The father renewed his application for a stay pending the determination of both appeals by filing a further application on 4 September 2006.
In refusing the stay, Penny J made reference to the judgment of the Full Court in Re Evelyn(No. 2) (1998) FLC 92-817 where the Full Court adopted the test as stated by Nygh J in Clemett and Clemett (1981) FLC 91-013 at 76,175 where his Honour said:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
Her Honour concluded that for the two and a half years leading up to the stay application the children’s circumstances had been anything but stable. After being placed in a home in Switzerland for over 12 months where they had regular contact with their mother, they had spent a further 18 months in Perth having no physical contact with their mother and mainly supervised contact with their father. They had lived in three different foster placements during that time and attended three different schools.
Her Honour’s preliminary view was that at best the appeal may be successful on only one of the three grounds upon which she was told it was being argued. She noted that the appeal could be heard within two months of the stay application but if the appeal was successful, a rehearing would become necessary and it would be well into the following year before the matter could be finally determined.
Her Honour was of the view that the present circumstances of the children living in foster care and having no physical contact with their mother was not in their best interests. Finally she expressed the view that even if the children were, as a result of any future proceedings, to be required to live in Australia, there would in all likelihood be contact with their mother in Switzerland which would require movement of the children between the two countries. Her Honour could see no reason why the movement could not commence immediately with the children returning to Switzerland and then returning to Australia if required to do so as a result of the outcome of the appeal or any subsequent proceedings.
We heard the appeal as a matter of urgency on the day that the children were due to fly out to rejoin their mother in Switzerland. We were informed that the children had already packed their suitcases and said goodbye to all of the people in Australia who were then significant to them. We were told that the news of not being allowed to leave Australia would be very traumatic to the children.
One of the findings of the trial Judge was that if N’s wishes to reside with her mother were not complied with, she would lose hope and develop a proneness to depression. N had already demonstrated self-harm tendencies upon her arrival in Australia and it was likely that those self-harm attempts would commence again.
The following Grounds of Appeal against her Honour’s decision of 18 August 2006 were relied upon by the appellant (Notice of Appeal filed 4 September 2006):-
1. The learned Judge’s decision was wrong in law as contrary to the decision of EJK v TSL (No.2) [2006] of the Full Court of The Family Court of Australia;
2. In light of the fact that her Honour the trial Judge has found that:
[I]n June 2001, the mother unlawfully removed the children [N] and [K] from Australia and Switzerland in order to deprive the father of having any contact with them, and thereafter she kept the location of the children secret from the father thereby preventing him from having any contact with the children until they were removed from the mother’s care by the Swiss authorities in January 2004;
there is strong doubt that the mother would voluntarily return the children to Australia in the event of a successful appeal of the orders made on 18th August 2006;
3. Her Honour the Trial Judge erred in ordering that the children [N] and [K] be returned to the mother prior to the determination of the husband’s appeal of her Honour’s orders of the 30th June 2006. Her Honour should have ordered that the children [N] and [K] reside with the father pending the determination of the appeal of the father of Her Honour’s orders of the 30th June 2006.
4. [Further grounds to be added upon receipt of her Honour’s Judgment of 18th August 2006, which have not been provided]
The appellant essentially asserted that her Honour erred in failing to stay her Order of 30 June 2006 pending the appeal, having regard to both:-
a) The relevant law as set out in EJK & TSL (No.2) [2006] FamCA 806; and
b) Her Honour’s alleged error in finding that the mother would voluntarily return the children to Australia in the event of a successful appeal of the Order of 18 August 2006.
The matter of EJK v TSL (No.2) [2006] FamCA 806; (2006) 35 Fam LR 590 (Coleman, May & Boland JJ) was determined on 17 August 2006, and her Honour was not referred to it.
Senior Counsel for the appellant father sought to draw an analogy between the current matter and EJK v TSL (No.2) (supra). He submitted that in both cases the Court was considering a stay in the context of a `lack of enforceability of the orders’ made by the learned trial Judge to ensure that a residential parent (and departing parent) complied with contact orders. This submission requires us to set out the facts in EJK v TSL and the circumstances in which the Orders were made.
In EJK v TSL, a child of Korean origin was removed from Korea by his mother without the father’s consent or knowledge at a time when the mother was having contact with the child. The child was aged five and a half years at date of the Full Court’s consideration of the matter.
After her arrival in Australia the mother sought ex parte interim orders providing for the child to live with her. On becoming aware of the child’s location, the father sought an order that the child be returned to Korea.
The Judge at first instance determined that the Korean courts were best placed to determine issues relative to the child’s residence and stayed the mother’s parenting applications. The mother was unsuccessful in her appeal against that order and the Full Court remitted the matter to the trial Judge for the making of mechanical orders for the child’s return to the father’s care. At that hearing the mother sought to agitate her further application for interim and final Orders filed after the Full Court’s determination, and sought to abridge time in order to do so. The trial Judge declined to abridge time and made Orders for the return of the child to Korea with the father On the same date, counsel for the mother made an oral application for a stay of the trial Judge’s earlier Order on the basis of a foreshadowed appeal. Her Honour refused the application for a stay.
An urgent Full Court was convened to consider the mother’s appeal against the trial Judge’s refusal to stay her Orders pending an appeal. The mother’s counsel submitted that the mother’s appeal was a bona fide application premised upon the trial Judge’s failure to address the child’s circumstances at the time of the order. Further, it was submitted that her Honour had failed to have proper regard to the child’s residence in Australia with the mother for a period of twenty-six months and had placed improper reliance upon undertakings given by the father which would not be enforceable in Australia.
It was further submitted that the trial Judge had failed to address the fact that the mother would not return to Korea, and the effect of the consequent separation between mother and child upon the latter.
Her Honour had determined at first instance that the outcome of any future appeal would not be rendered nugatory by the return of the child to Korea as the father had entered into an undertaking that he would “forthwith do all things that he is able to do to release the applicant wife … from prosecution in Korea in respect to her removal from Korea of the child…”.
The Full Court noted that there was no evidence before the trial Judge of the enforceability of the relevant undertakings after the father’s return to Korea, nor a requirement that the father give like undertakings to the Korean Court. The Full Court was ultimately of the view that her Honour’s discretion not to grant the stay miscarried by her failure to give sufficient weight to the lack of enforceability of the undertakings in Australia.
We are of the view that the facts in EJK v TSL (No.2) (supra) are distinguishable from those in this case. Korea is not a signatory to the Hague Convention and the failure to require undertakings to be given to the Korean Court, and absence of evidence as to the enforceability of undertakings given in Australia, was crucial. Further there was no evidence that the child’s immediate circumstances were detrimental to her wellbeing as there was in this case.
At the commencement of her consideration of the stay application on 18 August 2006, Penny J expressly indicated that she was satisfied that were “safeguards in place in Switzerland to ensure the wife’s compliance with [her Honour’s] orders”.
It was submitted by Senior Counsel for the appellant father that her Honour had misunderstood the effect of the evidence from Switzerland and that the orders could not be registered in Switzerland as they were not final orders and still subject to appeal.
Further it was submitted that in light of the mother’s previous conduct, no weight could be given to her assurance that she would return the children if the appeal was successful, and in any event it would not be in the children’s best interests to have them returned to Switzerland only to have them return to Australia in the event that the appeal was successful.
In fairness to the submissions on behalf of the father, it is not clear that the terms of her Honour’s orders were met by the letter from the relevant Swiss authorities that had been produced to her. However her reasons for refusing the stay were not based solely on that. She expressed herself satisfied that the wife would comply with her orders and subsequently with those of the Full Court.
The Independent Children’s Lawyer was primarily concerned with a need, recognised by the clinical psychologist, Dr H, for the children to have contact with the mother irrespective of the success or otherwise of any appeal. Penny J made her determination of 4 September 2006 on the basis of that evidence. A further concern emphasised by the Independent Children’s Lawyer was that the children had spent the earlier portion of 4 September saying goodbye to various people and otherwise preparing to depart Australia the same evening. Counsel for the Independent Children’s Lawyer submitted that it was clear from her Honour’s judgment of 30 June 2006 that the children had felt disempowered by the court process, in that `they have consistently had an approach throughout that they wish to be returned to their mother and that has not been taken on board’. Counsel further submitted that:-
That was what they were feeling; that nobody was listening to them. So I think it is going to be - although I'm sure my friend from the department will have something to say about that. But that would be my only concern given that the case law says in children's matters we need to put the children's interests first.
Whether or not the children will be able to cope with to the extent where they are now or but on the plane to be then told, "Sorry, but you're not going to see mum just yet," it's going to be another two or three months or whatever would happen. So that is my concern with respect to the children.
Her Honour had stated that it would not be in the best interests of the children to delay their departure given their awareness of the scheduled flight and that they had set about saying their goodbyes.
The Court was also advised by Counsel for the intervenor that Dr H was scheduled to travel with the children to Switzerland on the evening of 4 September and Dr O, a Swiss Doctor who had previous dealings with the children, had made himself available to assist the children following their arrival in Switzerland. Dr O would not otherwise be available later in the month.
Counsel submitted that the involvement of both professionals was a relevant factor in considering her Honour’s decision to refuse the husband’s application.
It seems to us that in refusing to grant a stay of the orders pending the appeal her Honour identified the correct test and appropriately applied it.
In our view, the unusual circumstances of this case made it abundantly clear that the welfare of the children dictated as expeditious a return to Switzerland as could be organised in the circumstances.
In Sanders (1976) 26 FLR 474 at 476, Evatt CJ, with whom Marshall and Watson SJJ concurred, said:
In custody cases, whether they arise at first instance or on appeal, in my view it is not desirable to disturb the status quo pending the determination of the matter unless there is something about that status quo which might be harmful to the child.
The potential for further disruption to the children’s lives whilst an appeal was heard in Australia which, if successful, would have inevitably have led to a further trial to be considered in light of new legislation with the children remaining out of physical contact with their mother could not be seen to be in any way consistent with advancing their welfare and indeed could be said to be harmful to them.
Her Honour was obliged to weigh up the father’s rights of appeal and continuing physical contact with the children in the meantime versus what appeared to be clearly an order in the children’s best interests. Once those scales tipped heavily in favour of advancing the children’s best interests by ordering their swift return, the possible loss of a meaningful appeal had to give way. It was for these reasons that we dismissed the appeal.
Following the dismissal of the appeal, we directed that the costs of 4 September 2006 be costs in the appeal filed 28 July 2006.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Full Court
Associate:
Date: 24 May 2007
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